Court to consider affirmative action ban: In Plain English

Posted Fri, October 11th, 2013 8:41 pm by Amy Howe

As I noted earlier this week, the new Term has been described as a “season of sequels.” The “sequel” theme may be at its zenith on Tuesday afternoon, when – in a rare afternoon argument – the Court will return to a controversial issue that was on its docket quite recently: the use of affirmative action by public universities. In late June, the Court issued its decision in Fisher v. University of Texas at Austin, a challenge to that university’s consideration of race in its undergraduate admissions process. The Court sent the case back to the lower court with instructions to take a closer (and tougher) look at the policy – including whether there are any alternatives that could achieve a diverse student body without using race. Next week, in Schuette v. Coalition to Defend Affirmative Action, the Court will confront what this blog’s Stephen Wermiel has called the “mirror image” of the Fisher case. In Fisher, the Court was considering whether the Constitution allows a university to (voluntarily) consider race as a factor in admissions; in Schuette (pronounced shoot-ee), the issue is whether the Constitution allows a state to do the opposite: prohibit universities from using race as a factor. Let’s talk about the new case in Plain English.

To understand the case that is currently at the Court, we need to go back to 2003, when the Court issued its decision in Grutter v. Bollinger, another case out of Michigan. In that case, the Court held that the University of Michigan’s law school could consider race as one factor in its admissions process so that it could assemble a diverse student body.

In 2006, in a rejection of the program approved by the Court’s decision in Grutter, Michigan voters overwhelmingly enacted an amendment to the Michigan constitution – known as Proposal 2 – that (as relevant here) bans the use of affirmative action by public universities. Almost immediately, supporters of affirmative action filed suit in a federal trial court in Michigan, which upheld the amendment. But the appeals court struck down the ban. It reasoned that affirmative action is still constitutional, so by amending the Michigan constitution to prohibit its use altogether, Proposal 2 distorts the political process by making it difficult for minorities alone to advocate for preferences in admission. That, the lower court explained, is a result contrary to two decades-old Supreme Court cases holding that laws which restructure the political system to make it harder for a minority group to gain access to the system should be viewed with skepticism to determine whether they violate the Constitution’s Equal Protection Clause, which guarantees that any protection provided by a state to its citizens must be offered on an equal basis to all citizens.

The state asked the Supreme Court to weigh in, which the Court agreed to do last spring. In its briefs defending Proposal 2, the state concedes that there may be good reasons for continuing to use affirmative action. But, it emphasizes, that is not the question before the Court. Instead, the only question is whether the Constitution allows Michigan voters to decide that affirmative action is not an option for public universities in Michigan. The answer to that question, it says, is yes. First, Proposal 2 does not violate anyone’s right to equal protection under the laws because it doesn’t treat people differently based on their race. To the contrary, it prohibits public universities in the state from treating anyone differently based on his race.

Second, Proposal 2 does not restructure the political system in violation of the Constitution. As an initial matter, neither of the two cases on which the challengers rely involved a ban on preferential treatment; instead, the Court in those cases was considering whether laws that created barriers to equal treatment (for example, by banning school busing) were constitutional. Moreover, the state argues, a “political restructuring” only violates the Constitution if there is evidence that the restructuring was intended to discriminate based on race. There is no such evidence in this case, the state contends: not only are there plenty of non-discriminatory reasons to get rid of affirmative action, but Proposal 2 – which also banned preferential treatment based on gender – actually means that a majority of the state’s population will no longer receive preferential treatment.

On the other side of the case, the challengers to Proposal 2 urge the Court to review the measure using the toughest test that it employs to decide whether a law is unconstitutional – a standard known as “strict scrutiny.” That test is appropriate here, the challengers argue, because the measure makes it harder to adopt race-conscious admissions policies (which, they remind the Court, are constitutional) than it does to adopt other kinds of admissions policies. The challengers also try to push back against the idea that race was not at the heart of the decision to prohibit affirmative action in Michigan, contending that there is no way other than race to explain the measure’s adoption: the measure was a direct response to the Court’s decision in Grutter, and it was characterized by its supporters as a measure that would prohibit public universities from considering race in their admissions process.

If (as the challengers suggest) strict scrutiny does apply, they then argue that Proposal 2 cannot pass that test. They allege that the state has never given a good reason why it needs to have such a policy enshrined in its constitution, and – even if it had – there are other ways to reduce the role of race in society.

When the Justices convene on Tuesday for the oral argument, Justice Elena Kagan will not participate, presumably because she was involved in the case in some way when she served as the Solicitor General of the United States. (She also did not participate in the Fisher case, for the same reason.) Kagan’s recusal means that, if the Court were to divide four to four, the lower court’s decision would stand, although it wouldn’t apply to the rest of the country. But the Court’s five most conservative Justices will cast votes in the case. Because they have previously advocated for using race less in the government’s decisions, it is hard to see where the opponents can find enough votes in their favor. And if the ban survives, more states could follow suit, rendering the Court’s discussion of when the Constitution permits universities to choose to use affirmative action moot in those states. We will have a better sense of what the Court may do after next week’s oral argument, and we’ll report back then in Plain English.

[Disclosure: Kevin Russell of Goldstein & Russell, P.C., is among the counsel on a “friend-of-the-court” brief in support of the challengers to Proposal 2. However, I am not affiliated with the firm and was not involved in the case in any way.]

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